Citation Nr: 1025277
Decision Date: 07/07/10 Archive Date: 07/19/10
DOCKET NO. 07-11 808 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to service connection for temporomandibular joint
(TMJ) syndrome.
2. Entitlement to service connection for a heart disability,
including hypertension.
3. Entitlement to service connection for an acquired psychiatric
disability other than PTSD (characterized as a nervous disorder).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The Veteran, his wife, and his daughter
ATTORNEY FOR THE BOARD
Michael T. Osborne, Counsel
INTRODUCTION
The Veteran had active service from July 1972 to July 1976.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal of an October 2005 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Huntington, West Virginia, which determined that new and material
evidence had not been received sufficient to reopen the Veteran's
previously denied claims of service connection for TMJ syndrome,
for a heart disability, including hypertension, and for an
acquired psychiatric disability other than PTSD (characterized as
a nervous disorder). A Travel Board hearing was held at the RO
in July 2007 before the undersigned Acting Veterans Law Judge and
a transcript of this hearing has been added to the claims file.
In November 2007, the Board reopened the Veteran's previously
denied claims of service connection for TMJ syndrome, for a heart
disability, including hypertension, and for an acquired
psychiatric disability other than PTSD (characterized as a
nervous disorder) and remanded the Veteran's appeal to the RO via
the Appeals Management Center (AMC) in Washington, DC, for
additional development.
Unfortunately, as will be explained below, this appeal is
REMANDED again to the RO/AMC. VA will notify the Veteran if
further action is required on his part.
REMAND
In its November 2007 remand, the Board requested that the RO/AMC
schedule the Veteran for appropriate VA examinations to determine
the nature and etiology of TMJ syndrome, a heart disability,
including hypertension, and an acquired psychiatric disability
other than PTSD. The Board also requested that the RO/AMC obtain
medical opinions as to the etiology of each of these claimed
disabilities. A review of the August 2008 VA examination request
prepared by the RO/AMC indicates that the Board's November 2007
remand directive for a VA psychiatric examination was not
included, although a psychiatric examination was ordered by the
RO/AMC. The RO/AMC also correctly included the Board's remand
directives for the VA dental and heart examinations. A review of
the VA examinations conducted in August and September 2008 shows
that neither the VA examiner who conducted the VA psychiatric
examination nor the VA examiner who conducted the VA heart
examination provided the opinion(s) requested by the Board
concerning the etiology of the Veteran's heart disability,
including hypertension, and acquired psychiatric disability other
than PTSD.
In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that
a remand by the Board confers on the appellant, as a matter of
law, the right to compliance with the remand orders. Therefore,
the Board must again remand these issues in order to obtain the
necessary opinions.
The Board also notes that the VA dental examination report
completed in August 2008 needs to be returned for clarification
of the opinion provided by the VA examiner at that examination.
The Veteran has contended that he has experienced TMJ since a
third molar was extracted during active service and required an
overnight hospital stay. He reported this alleged in-service
history to the VA examiner at his August 2008 dental examination.
The Board notes further that a review of the Veteran's service
treatment records, including his dental treatment records, does
not indicate that he had an overnight hospital stay following an
in-service molar extraction. Following a review of the claims
file and a thorough dental examination of the Veteran, the VA
examiner opined, "It is at least as likely as not that the
Veteran's current TMJ syndrome is related to his period of
service. It is impossible to know, without documentation,
whether or not his symptoms began while he was in the Navy."
Because the opinion provided by the VA dental examiner in August
2008 appears to be internally contradictory, the Board finds that
this examination report is unreliable in its current form and
must be returned as inadequate. See 38 C.F.R. § 4.2 (2009). On
remand, the VA dental examiner who conducted the Veteran's August
2008 dental examination should be asked to provide a complete
rationale for her opinion and, if possible, to reconcile the
apparent contradiction contained in her original opinion in an
addendum to this examination report.
Accordingly, the case is REMANDED for the following action:
1. Contact the VA examiner who conducted the
Veteran's VA heart examination on August 21,
2008, and ask him to opine whether it is at
least as likely as not (i.e., a 50 percent or
greater probability) that a heart disability,
including hypertension, is related to active
service or any incident of such service. A
complete rationale must be provided for any
opinion(s) expressed.
If the VA examiner who conducted the
Veteran's VA heart examination on August 21,
2008, is not available, then schedule the
Veteran for appropriate VA examination(s) to
determine the nature and etiology of his
heart disability, including hypertension.
The claims file must be provided to the
examiner(s) for review. Based on a review of
the claims file and the results of the
Veteran's physical examination, the
examiner(s) is asked to opine whether it is
at least as likely as not (i.e., a 50 percent
or greater probability) that a heart
disability, including hypertension, if
diagnosed, is related to active service or
any incident of such service. A complete
rationale must be provided for any opinion(s)
expressed.
2. Contact the VA examiner who conducted the
Veteran's VA dental examination on August 21,
2008, and ask her to provide an addendum to
this examination report. In the addendum,
this VA examiner is asked to reconcile the
apparent contradiction in her August 2008
opinion that the Veteran's current TMJ
syndrome was related to active service but it
was impossible to know without documentation
whether his symptoms began during active
service. A complete rationale must be
provided for any opinion(s) expressed.
If the VA examiner who conducted the
Veteran's VA dental examination on August 21,
2008, is not available, then schedule the
Veteran for appropriate VA examination(s) to
determine the nature and etiology of his TMJ
syndrome. The claims file must be provided
to the examiner(s) for review. Based on a
review of the claims file and the results of
the Veteran's physical examination, the
examiner(s) is asked to opine whether it is
at least as likely as not (i.e., a 50 percent
or greater probability) that TMJ syndrome, if
diagnosed, is related to active service or
any incident of such service, to include an
alleged in-service third molar extraction
which required an overnight hospital stay. A
complete rationale must be provided for any
opinion(s) expressed.
3. Contact the VA examiner who conducted the
Veteran's VA psychiatric examination on
September 3, 2008, and ask her to opine
whether it is at least as likely as not
(i.e., a 50 percent or greater probability)
that an acquired psychiatric disability other
than PTSD is related to active service or any
incident of such service. A complete
rationale must be provided for any opinion(s)
expressed.
If the VA examiner who conducted the
Veteran's VA psychiatric examination on
September 3, 2008, is not available, then
schedule the Veteran for appropriate VA
examination(s) to determine the nature and
etiology of an acquired psychiatric
disability other than PTSD. The claims file
must be provided to the examiner(s) for
review. Based on a review of the claims file
and the results of the Veteran's physical
examination, the examiner(s) is asked to
opine whether it is at least as likely as not
(i.e., a 50 percent or greater probability)
that an acquired psychiatric disability other
than PTSD, if diagnosed, is related to active
service or any incident of such service. A
complete rationale must be provided for any
opinion(s) expressed.
4. Review the VA examination report(s) after
completion to ensure that all questions asked
of the examiner(s) were answered to the
extent possible. If they were not, return
the claims file to the examiner(s) and
request that the questions to answered so
that the report is adequate for rating
purposes.
5. Thereafter, readjudicate the Veteran's
claims of service connection for TMJ
syndrome, for a heart disability, including
hypertension, and for an acquired psychiatric
disability other than PTSD (characterized as
a nervous disorder). If the benefits sought
on appeal remain denied, the appellant should
be provided a supplemental statement of the
case. An appropriate period of time should
be allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
ROBERT C. SCHARNBERGER
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).